Filling a Gap, Not Closing It: International Human Rights Law, Non-Refoulement, and the Protection of Pacific Islanders Displaced by Slow-Onset Sea-Level Rise

Abstract

This article asks to what extent international human rights law, through the principle of

non-refoulement, can fill the protection gap left by the 1951 Refugee Convention for

Pacific Islanders displaced across international borders by slow-onset sea-level rise. It

argues that non-refoulement can and does provide a genuine, doctrinally distinct

pathway to protection that does not require the applicant to be recognized as a

Convention refugee, but that this pathway fills only the narrowest part of the gap: the

prohibition on removal itself. Drawing on the UN Human Rights Committee's decisions

in Teitiota v. New Zealand and Daniel Billy et al. v. Australia, and on the doctrinal

literature that has grown up around both cases, the article shows that the practical

reach of non-refoulement for slow-onset harm depends on three unresolved variables:

how risk is aggregated across multiple sub-threshold harms, whether "imminence" or

"foreseeability" is applied as the operative legal standard, and how the evidentiary

burden of proving future risk is allocated between claimant and state. It concludes that

non-refoulement is a necessary but structurally insufficient response: it can prevent the

worst individual outcome, forced return to a disappearing homeland, without ever

supplying the status, rights, or durable solution that genuine protection from climate

displacement requires.